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Children: Public Law Update (December 2018)

John Tughan QC of 4 Paper Buildings reviews recent, important Children Public Law cases.

John Tughan QC of 4 Paper Buildings

In this public law update, I will consider recent decisions relating to the following issues:

(i) the identification of the perpetrator of injuries to a child and the duty to put the case;

(ii) a further decision in relation to the issue of disclosure from the police into care proceedings;

(iii) the separation of threshold criteria issues from welfare issues;

(iv) a "revised Lucas direction"

B (A Child) [2018] EWCA Civ 2127 involved an appeal on the issue of the identification of the perpetrator of non-accidental injuries.  At a few weeks of age the child was admitted to hospital with rib and leg fractures.  The local authority contended for a pool of perpetrators involving the two parents.  The parents blamed each other (in effect) and the Guardian was neutral. 

There were three separate applications of force to the child within 10 days of admission.  There was no evidence of collusion between the parents.  The Father worked while the Mother had stayed at home since the birth.  The Recorder heard the evidence and identified the Mother as the perpetrator.

As part of the judgment at first instance the Recorder identified the Mother's greater opportunity to inflict the injuries but asserted that mere opportunity does not necessarily equate with the probability that she did so.  That greater opportunity was, however, significant.

The Court of Appeal (Peter Jackson LJ gave the lead judgment) dealt with two issues of law, the duty to put an adverse case and the "only two possible perpetrators" issue.

There was a well established duty to put the adverse case in cross-examination, from Browne v Dunn [1894] 6 R 67 (HL) to Re W (A Child) [2016] EWCA Civ 1140 and Chen v Ng [2017] UKPC 27. The issue of whether a case had been properly put was case-specific and the factors to be taken into account were the importance of the issue in the context of the case, the closeness of the grounds [for disbelieving the witness] to the points put to the witness, the reasonableness of the grounds not being put, whether the ground had been raised in speeches and the plausibility of the notion that the witness satisfactorily answered the grounds.

On the issue of two possible perpetrators the law was clear:

"The court first considers whether there is sufficient evidence to identify a perpetrator on the balance of probabilities; if there is not, it goes on to consider in relation to each candidate whether there is a real possibility that they might have caused the injury and excludes those of which this cannot be said: North Yorkshire County Council v SA [2003] EWCA Civ 839, per Dame Elizabeth Butler-Sloss P at [26]....

In what Mr Geekie described as a simple binary case like the present one, the identification of one person as the perpetrator on the balance of probabilities carries the logical corollary that the second person must be excluded. However, the correct legal approach is to survey the evidence as a whole as it relates to each individual in order to arrive at a conclusion about whether the allegation has been made out in relation to one or other on a balance of probability. Evidentially, this will involve considering the individuals separately and together, and no doubt comparing the probabilities in respect of each of them. However, in the end the court must still ask itself the right question, which is not "who is the more likely?" but "does the evidence establish that this individual probably caused this injury?" In a case where there are more than two possible perpetrators, there are clear dangers in identifying an individual simply because they are the likeliest candidate, as this could lead to an identification on evidence that fell short of a probability. Although the danger does not arise in this form where there are only two possible perpetrators, the correct question is the same, if only to avoid the risk of an incorrect identification being made by a linear process of exclusion."

On the facts of this case and on the substance of the lucid first instance judgment, the appeal was dismissed.

This is an interesting decision upholding the Recorder's approach to the issue of opportunity for perpetration of injuries.  While opportunity alone is not enough, it can tip the scales and (as in this case) be a significant factor.

In H (Children) (2018) EWFC 61 Sir James Munby set out the issues with the various protocols of good practice including the protocol for police disclosure of information and concluded that they were not working as they should:

"My impression, based on my own judicial experiences and too much anecdotal information, is that these Protocols are not working as well as one would wish. Recent discussions, by Francis J in Re L (A Child) [2017] EWHC 3707 (Fam) (not affected on this point by the decision of the Court of Appeal allowing an appeal: Re A (Children) [2018] EWCA Civ 1718 – see King LJ, para 23) and by Gwynneth Knowles J in Lancashire County Council v A, B and Z (A Child : Fact Finding Hearing: Police Disclosure) [2018] EWHC 1819 (Fam), surely demonstrate, at least in relation to Part A, that the criminal Protocol and Good Practice Model is not working as it should and as it must....

I make no apologies if I seem to be labouring a point which ought to require no emphasis. However, I was recently confronted, in a care case that came before me on circuit, with a letter, written by the legal department of a police force one really might have thought would have known better, which, responding to an order made by a Circuit Judge sitting in the Family Court for disclosure by the police of certain documents, sought to explain why it was proposed by the police not to comply with this "request" (as it was described) because, in the view of the writer, it was inappropriate. Without having thought it necessary to require the hapless writer of this astonishing missive to be brought to court to provide an explanation, it would not be fair to assume that this was impertinence or defiance rather than simple ignorance and incompetence; but either way it is deeply troubling that any police force can have thought that this was an appropriate response to an order of the court, even if it was a family and not a criminal court."

In K (A Child) [2018] EWCA Civ 2044 the Court of Appeal was dealing with the dismissal of care proceedings on the grounds that the threshold criteria were not made out.  It is worth reproducing the Court's summary of the background to the proceedings:

"Both of K's parents are very young. Her mother was 17 and her father 16 when she was born, and both have troubled personal histories. In 2016 the mother was herself the subject of care proceedings, during which she was diagnosed as having oppositional defiance disorder with behavioural difficulties since at least the age of twelve. In September 2016 she was convicted for failing to comply with a youth rehabilitation order, and at the end of that year she was placed in supported lodgings by the local authority. She then became pregnant and during the course of her pregnancy committed a number of crimes or alleged crimes of violence. She was also the victim of an assault by her brother. She engaged poorly with pre-birth services and at a child protection conference in August 2017 the unborn baby was registered under the category of potential neglect. This appears to have made little difference to the mother's approach. She was frequently missing from her supported lodgings and continued to smoke skunk cannabis while pregnant. At the time of K's birth in November 2017, the father was wanted by the police and his whereabouts were unknown. In March 2018 he was sentenced to 18 months' detention for armed robbery."

The Judge had recognised the troubling background and recorded that the independent social worker and Guardian were of the view that M could care for K in a highly supported environment but gave the opinion that her volatility would prevent her from giving safe, consistent and nurturing care in the community.  That was the opinion of the allocated social worker too.  The Psychiatric expert was cautiously optimistic but tempered this when the views of the other professionals were received.

"The judge however did not accept this evidence, essentially on the basis of the mother's performance since K was born. He emphasised that the language of "risks" and "concerns" was not good enough. He was impressed by the mother's presentation in court. The judge found and was entitled to find that the mother had not been volatile around or towards K. He posed this question to himself: 'Accordingly in my judgment the question whether, when the mother was first placed in the mother and baby foster placement, she was likely to be volatile around her own child has to be judged in large manner by her actual behaviour around [K]. There is no evidence that she is anything other than calm when around [K]. There have been no incidents with the foster carer despite the latter's, as the professionals say, too-intrusive approach.'"

The Judge went on to find that the threshold criteria were not made out.  The Court of Appeal allowed the appeal on three bases:

1. The Judge should have taken a view of the whole history, not just the time that M and K were together.  It was "overwhelmingly apparent" that the s31 criteria were crossed at the time proceedings were taken;

2. The Judge had failed to focus on the relevant date, namely the date that protective measures were put in place;

3. The Judge entangled welfare and threshold issues.  They are separate exercises. "It is not possible to reason that, because the child and parent should not be separated, the threshold has not been crossed."

In Hertfordshire v T and J [2018] EWHC 2796 the High Court was dealing with a case involving, amongst other issues, sexual abuse allegations.  Videos were found on the Father's phone of him having sexual intercourse with a 12 year old girl.

In approaching the evidence, Keehan J gave himself what he described as a "revised Lucas direction":

When considering the evidence, particularly the evidence of the mother, I give myself a revised Lucas direction, namely, I should only take account of any lies found to have been told if there is no good reason or other established reason for the person to have lied. I also take into account the decision of the Court of Appeal in Re H-C [2016] EWCA Civ 136 where McFarlane LJ (as he then was) said at para.100:

"One highly important aspect of the Lucas decision, and indeed the approach to lies generally in the criminal jurisdiction, needs to be borne fully in mind by family judges. It is this: in the criminal jurisdiction the 'lie' is never taken, of itself, as direct proof of guilt. As is plain from the passage quoted from Lord Lane's judgment in Lucas, where the relevant conditions are satisfied the lie is 'capable of amounting to a corroboration.' In recent times the point has been most clearly made in the Court of Appeal Criminal Division in the case of R v Middleton [2001] Crim.L.R. 251. 'In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should, therefore, take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt'."

I entirely accept that the mere fact of a lie being told does not prove the primary case against the party or the witness should they have been found to have lied to the court. I also bear in mind that there is no obligation on a party to prove the truth of an alternative case put forward by way of defence and the failure by the party to establish the alternative case on the balance of probabilities does not of itself prove the other party's case, Re X (No 3) [2013] EWHC 3651 Fam and Re Y (No 3) [2016] EWHC 503 Fam"